[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18957]

[[Page Unknown]]

[Federal Register: August 4, 1994]


40 CFR Part 52

[Region II Docket No. 127; SIPTRAX NY4-2-6503, FRL-5004-7]


Approval and Promulgation of Implementation Plans; Revision to 
the New York State Implementation Plan for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency is announcing the limited 
approval of a request by the State of New York to revise its State 
Implementation Plan (SIP) for ozone related to the control of volatile 
organic compound emissions from architectural coatings. EPA is also 
finding that the State has partially met a commitment made in its 1982 
ozone and carbon monoxide SIP for the New York City Metropolitan Area 
to regulate architectural coatings. This revision deleted part 205 
(1979 version) ``Photochemically Reactive Solvents and Organic Solvents 
from Certain Processes-New York City Metropolitan Area'' and added part 
205 ``Architectural Surface Coatings.'' This regulation will result in 
additional reductions in emissions of volatile organic compounds which 
will help to attain the national ambient air quality standard for 

EFFECTIVE DATE: This action will be effective September 6, 1994.

ADDRESSES: Copies of the State submittal are available at the following 
addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch, 
26 Federal Plaza, Room 1034A, New York, New York 10278.
New York State Department of Environmental Conservation, Division of 
Air Resources, 50 Wolf Road, Albany, New York 12233.
Environmental Protection Agency, Air and Radiation Docket and 
Information Center (MC 6102), 401 M Street SW., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: William S. Baker, Chief, Air Programs 
Branch, Environmental Protection Agency, 26 Federal Plaza, Room 1034A, 
New York, New York 10278, (212) 264-2517.

SUPPLEMENTARY INFORMATION: On July 27, 1993 (58 FR 40107) the 
Environmental Protection Agency (EPA) proposed limited approval of a 
request by the State of New York to revise its State Implementation 
Plan (SIP) for ozone. This revision deleted part 205 (1979 version) 
``Photochemically Reactive Solvents and Organic Solvents from Certain 
Processes-New York City Metropolitan Area'' and added new part 205 
``Architectural Surface Coatings,'' effective September 15, 1988 to 
Title 6 of the New York Code of Rules and Regulations. EPA also 
proposed finding that the State has partially met a commitment made in 
its 1982 ozone and carbon monoxide SIP for the New York City 
Metropolitan Area (NYCMA) to regulate architectural coatings.
    New part 205 provides for the regulation of architectural surface 
coatings, sold, offered for sale, or used in the NYCMA. Architectural 
surface coatings applied to stationary structures, buildings, houses, 
mobile homes, pavement or curbs are regulated by part 205. These 
coatings are not applied in a factory or manufacturing operation. The 
regulation requires any architectural coating manufactured after July 
1, 1989 that is to be sold, offered for sale or used in the NYCMA to 
meet the designated volatile organic compound (VOC) content limitations 
in part 205.
    Paint manufacturers must include on the container the VOC content 
limitations, date of manufacture or date code, along with any 
instructions concerning thinning. Compliance with part 205 can be 
determined visually by checking the paint containers and by taking 
samples of the paint and calculating the volatile content of the 
coating and comparing it with the limit in the regulation. In some 
instances it is necessary to measure certain coating parameters. The 
EPA recommended test method for determining these parameters is EPA 
Reference Method 24 (40 CFR part 60 Appendix A). Part 205 inadvertently 
omitted this reference which New York uses in performing similar 
testing for other regulations. Therefore, EPA cannot fully approve the 
regulation. However, because EPA believes that the regulation 
strengthens the SIP by providing for additional reductions of VOCs, EPA 
is granting a limited approval to the regulation.
    EPA also finds that the State has partially fulfilled its 
commitment in the SIP to adopt an architectural coatings control 
measure (contained in part 205). Adoption of a specific test procedure, 
as discussed above, is necessary to completely fulfill this commitment.
    The basis for EPA's limited approval is further explained in the 
proposed rulemaking on July 27, 1993 (58 FR 40107). In that proposed 
rulemaking, EPA asked for comments on its proposed action. EPA received 
one comment, from the Consumer Policy Institute (CPI).
    CPI raises three issues in its comments: the timeliness of New 
York's submission, the difference between the emission reductions New 
York committed to and the emission reductions actually obtained, and 
whether New York is enforcing the regulation.
    First, CPI notes that New York has failed to meet the commitment 
made in its 1982 SIP in a timely manner, and questions whether New York 
will further ``slip'' in meeting other SIP requirements.
    New York's 1982 SIP committed to develop and adopt an architectural 
regulation by January, 1986. New York did not meet this date for a 
variety of reasons. The Clean Air Act, as revised in 1977, provided 
limited remedies for a state which failed to meet Act and SIP 
requirements, but these were sufficient to result in New York adopting 
part 205 on August 15, 1988. The amendments of 1990 substantially 
strengthen EPA's enforcement abilities by providing specific 
procedures, time frames for SIP submittals and sanctions should a state 
fail to submit or implement their SIPs. The sanctions which the Act 
mandates are: restrictions on new growth of industries which generate 
air pollutants and a loss of federal highway funds. EPA believes these 
new strengthened procedures and sanctions will induce the states to 
fulfill their obligations.
    Second, CPI notes that New York committed to obtaining 11,682 tons 
of reductions in VOCs in its 1982 SIP, yet New York now estimates that 
part 205 will only result in emission reductions of 3,000 tons per 
year. CPI questions how New York will meet this commitment for 
equivalent tonnage reductions in VOCs.
    This comment raises concerns regarding the level of controls that 
have been required and the ability of New York to demonstrate 
attainment (i.e., rectify the shortfall). The Clean Air Act addresses 
both of these concerns. The Act uses a fundamental concept that sources 
should apply reasonably available control technology (RACT), as defined 
in control techniques guidelines (CTGs) or as determined by a state 
through a specific technical and economic review of the industry. As 
EPA explained in its proposed action, New York's original emission 
reduction was based on 1975 data which New York believes overestimated 
the amount of solvent based coatings used in the NYCMA, and on which 
the projected emission reductions were based. The present emission 
reduction estimate reflects current coating usage and solvent content 
which EPA believes is more accurate. EPA also notes that New York has 
regulated all the high volume coatings as well as most of the lower 
usage coatings that the original commitment intended. In addition, EPA 
has found that New York's VOC limitations are consistent with 
regulations of the limited number of states that have also regulated 
these coatings. Furthermore, section 183(e) of the Act requires EPA to 
regulate consumer products, which include architectural coatings. EPA 
has a major rule development effort underway to develop a national 
architectural coatings regulation that will provide more extensive and 
current data on coating content and usage. Once this data is available, 
New York will be able to reevaluate its rule to determine if additional 
reductions are achievable.
    In terms of New York's ability to reach attainment, Congress, in 
recognizing that many states, including New York were having problems 
solving their air pollution problems, set forth a procedure for states 
to follow in the Act as amended in 1990. This procedure consists of 
requirements to develop accurate current emission inventories that can 
be used in selecting control strategies, to adopt specific control 
measures, to develop reasonable further progress plans, and to develop 
any additional control measures needed to attain the standard by the 
specified dates. These requirements will address any shortfalls that 
remain from the previously approved SIP and insure that states, like 
New York, attain the ozone standard in an expeditious manner.
    Third, CPI raises its concern that, while New York State has 
adopted the regulation, it may not actually be enforcing it.
    Part 205 contains labeling requirements with which manufacturers of 
architectural coatings must comply. This provides a quick method of 
screening the coatings being sold. In addition, after the regulation 
became effective, New York State performed random checks of retail 
stores to ensure that only compliant coatings were being sold. New York 
has continued to take action to ensure that retailers and manufacturers 
are complying with part 205.
    In addition, by incorporating this regulation into New York's SIP, 
it becomes federally enforceable. Thus EPA has the authority to take 
enforcement action should EPA determine there is any lack of 


    The Agency has reviewed New York's request for revision of the 
federally-approved SIP for conformance with the provisions of the 1990 
Amendments enacted on November 15, 1990. The Agency has determined that 
this action conforms with those requirements irrespective of the fact 
that the submittal preceded the date of enactment. The revision 
incorporates a control program consistent to the one committed to in 
the 1982 SIP and results in emission reductions. Therefore, New York's 
submittal meets the requirements of section 193. Beyond that, the 
revision will not interfere with the SIP's ability to meet the new 
Act's requirements, and thus it meets the test in section 110(i) of the 
    Because of a missing test method, EPA cannot grant full approval to 
this regulation under section 110(k)(3). Because the submitted 
regulation is not composed of separable parts which meet all the 
applicable requirements of the Act, EPA cannot grant partial approval 
for the rule under section 110(k)(3). However, EPA may grant limited 
approval of the submittal under section 110(k)(3) in light of EPA's 
authority pursuant to section 301(a) to adopt regulations necessary to 
further air quality by strengthening the SIP.
    EPA also finds that the State has partially fulfilled its 
commitment in the SIP to adopt an architectural coatings control 
measure (contained in part 205). Adoption of the missing test 
procedure, as discussed above, is necessary to fulfill this commitment 
in whole.
    Section 183(e)(3) of the Clean Air Act requires that EPA develop 
either national regulations or CTG for consumer and commercial 
products, which may include architectural coatings. If EPA promulgates 
a federal regulation for architectural coatings under this authority, 
then sources covered by New York's part 205 would also be required to 
comply with the federal regulation. New York does retain the right to 
promulgate regulations that are more stringent than either a federal 
regulation or a CTG.
    Nothing in this rule should be construed as permitting, allowing or 
establishing a precedent for any future request for revision to any 
SIP. Each request for revision to any SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors, and in relation to relevant statutory and regulatory 
    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866 review.
    Under section 307(b)(1) of the Act, petitions for judicial review 
of this rule must be filed in the United States Court of Appeals for 
the appropriate circuit within 60 days from date of publication. Filing 
a petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed and shall not postpone the effectiveness of such 
rule or action. This rule may not be challenged later in proceedings to 
enforce its requirements. (See 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: June 13, 1994.
William J. Muszynski,
Deputy Regional Administrator.

    Title 40, chapter I, part 52, Code of Federal Regulations is 
amended as follows:


    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart HH--New York

    2. Section 52.1670 is amended by adding new paragraph (c)(87) to 
read as follows:

Sec. 52.1670  Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (87) A revision to the New York State Implementation Plan (SIP) for 
attainment and maintenance of the ozone standard dated October 14, 
1988, submitted by the New York State Department of Environmental 
    (i) Incorporation by reference:
    (A) New part 205 of title 6 of the New York Code of Rules and 
Regulations of the State of New York, entitled ``Architectural Surface 
Coatings,'' effective on September 15, 1988.
    (ii) Additional material.
    (A) December 5, 1988 letter from Thomas Allen, to Conrad Simon, 
EPA, requesting EPA approval of the amendments to part 205.
    3. Section 52.1679 is amended by revising the entry for part 205 in 
the table to read as follows:

Sec. 52.1679  EPA-approved New York State regulations. 

   New York State regulation     effective date      Latest EPA approval date                Comments           
                                                  * * * * * * *                                                 
Part 205 ``Architectural                9/15/88  8/4/94, [insert citation of      Until EPA approves State      
 Surface Coatings''.                              this notice].                    adopted coating test method, 
                                                                                   EPA will use 40 CFR part 60, 
                                                                                   App. B, Method 24.           
                                                 * * * * * * *                                                  

[FR Doc. 94-18957 Filed 8-3-94; 8:45 am]